Photo of Michelle Yeary
            Whether you call it a mulligan, a do-over, or a gimme — the result is the same.  You get a second chance at something that didn’t go so well the first time.  For instance, we think it is likely that Sony would like a do-over on the Betamax as much as we’d like a pass (or a mind eraser) on any hairstyle from the 1980s.  Here’s a few other flubs we believe their creators would like to take a mulligan on:  McDonald’s McDLT (keep the hot side hot and the cool side cool).  Jason Alexander is probably looking for a pass on that one too.  New Coke – need we say more?  And what about Vince McMahon’s XFL?  Although who can forget Rod “He Hate Me” Smart?  And, we’re quite certain that the U.S. Ryder Cup team wishes mulligans were an official part of golf this weekend.  But they’re not – and they shouldn’t be part of multidistrict litigation either.
            Now, before we get too far, we should explain that we aren’t railing against legitimate motions for reconsideration.  They are a necessary and important part of the process; as are appeals.  As fallible people, we cling to our ability to rehash, reargue, modify, amend, and generally just keep going until we get it right.  While that can be an admirable quality, there comes a time when enough is enough.  That is why there are rules governing the timing of motions for reconsideration and appeals.  You can’t sit back and wait – you have to strike while the iron is hot if you want to undo a court’s decision.  And you usually only get one shot at asking the court to re-think its decision.  But what happens when more than one court is involved.
            We’re talking about MDLs – where a significant portion of drug and device law cases end up; usually for several years.  During which time, MDL courts oversee the production of  millions of pages of documents by our clients, dozens of corporate depositions, general causation Daubert challenges, deadlines for amending pleadings, and rulings on summary judgment motions.  What takes place during an MDL varies – but the bottom line is that something does take place and that something becomes history of the case for every case that was part of the MDL.   If the litigation isn’t resolved via settlement, at some point the MDL court will remand the cases back to the original transferor courts.
            At which time, parties have been known to try for a mulligan – an attempt to re-litigate something already decided by the MDL.  We say parties because defendants aren’t immune from the desire to give it just one more try.  Certainly there are times when defendants wish an MDL ruling wasn’t tethered to a remanded case.  But they are and on the whole, defendants are better served by embracing the MDL history.  For instance, if our company witnesses are deposed in the MDL, we don’t want them re-deposed in remanded cases.  If the MDL court sets a deadline for expert witnesses, we don’t want new experts named in remanded cases.  If the MDL court closes the pleadings, we want them to remain closed in the remanded cases.  These are some of the main reasons we seek consolidation in the first place – we don’t want to put our clients through duplicate discovery and multiple rulings on general, core issues that apply to every case.  The risk of a bad decision following us out of the MDL is worth the benefits that come from coordination.
            But, we only get that benefit if the remand court adheres to the decisions of the MDL.  There are plenty of cases about remand courts adhering to the substantive rulings of the MDL.  If a motion to amend a complaint was denied by the MDL judge, that decision shouldn’t be disturbed on remand:

It is not for this court to determine whether the MDL court’s decision was right or wrong. The whole purpose of MDL would be defeated if the trial judge after remand were to revisit the rulings of the MDL judge.

White v. Novartis Pharms. Corp., 2010 U.S. Dist. LEXIS 95696 at *5 (E.D. Cal. Aug. 31, 2010).  If an expert is excluded by the MDL judge, he shouldn’t get to testify in the remanded case:

But there is another reason to doubt the reliability of Dr. Hwang’s opinion. The MDL court held that . . . one of the . . . studies Dr. Hwang relied on, “is not admissible evidence of causation” and excluded all opinions “to the extent they were based on the Davidson study.”  In re Zicam Cold Remedy Marketing, Sales Practices, and Prods. Liab. Litig., 2011 WL 798898, *17 (D. Ariz. 2011). This Court will not readjudicate the MDL court’s ruling.

Nelson v. Matrixx Initiatives, 2012 U.S. Dist. LEXIS 118300 at *33 (N.D. Cal. Aug. 21, 2012).  These are easy decisions for the remand courts – they turn on the law of the case doctrine.  But what about MDL procedural orders?
We thought about this when we blogged about Conklin v. Novartis Pharmaceuticals Corporation a couple of weeks ago.  See post.  In addition to granting defendant’s Daubert  and summary judgment motions in this post-remand Aredia/Zometa case, the court addressed an interesting procedural issue.  The remand court gave plaintiff permission to amend her complaint to add a punitive damages claim.  When plaintiff finally got around to amending her complaint, beyond the three weeks the court gave her, she had added “numerous facts,” added allegations regarding a new drug (Aredia), and asserted several causes of action that had previously been dismissed by the MDL court.  Conklin, 2012 U.S. Dist. LEXIS 136428 at *12 (E.D. Tex. Sept. 19, 2012).  In response to defendant’s motion to strike, plaintiff argued that “no Scheduling Order [was] in place in this case, and the MDL deadlines do not matter.”  Id. at *14.  Blasphemy!  Fortunately, the court didn’t believe in mulligans either:

[W]hile this court has not entered a Scheduling Order, that is because the MDL court previously did so. Ms. Conklin amended her pleadings more than four years after the MDL court’s deadline. Ms. Conklin does not get a “do over” simply because this case has been remanded from the MDL.

Id. at *15 (emphasis added).  The court also struck plaintiff’s new claims relying in part on how long the case had been in the MDL and the extensive discovery that took place there.  Id. 
            The Conklin court isn’t the only remand court that has said no to a plaintiff’s request for a “do over” in a procedural context.  For instance, we blogged about Harvey v. Novartis Pharm. Corp., 2012 U.S. Dist. LEXIS 6390 (N.D. Ala. Jan 12, 2012) shortly after it was decided.  See here.  In that case, plaintiff – post-remand – was looking to designate a new expert even though the MDL deadline for expert designations had expired a year earlier.  Plaintiff tried to allege that a recent appellate decision was “good grounds” for the remand court to modify the MDL deadline, but the court wasn’t willing to give plaintiff a “gimme”:

In sum, Plaintiff has not shown good cause as to why she waited to designate “a case-specific expert” until after the [MDL] deadline for designation of experts expired, after  discovery closed, after the Defendant filed Daubert and summary judgment motions, after the consolidated pretrial proceedings were completed in  MDL court, and after the case was  remanded back to this Court for final resolution of the pending motions.

Id. at *13 (emphasis in original).  In Pavlou v. Baxter Healthcare Corp., 2004 U.S. Dist. LEXIS 2690 (S.D.N.Y. Feb. 20, 2004), the MDL court had set a deadline for designating general causation experts.  On remand, the plaintiff wanted her case-specific expert – who had not been deposed or subjected to Daubert challenge in the MDL — to also be allowed to testify on general cause.  Again, the remand court stuck to the MDL’s guns:

The Court is persuaded that MDL consolidation would be poorly served if parties were forced to engage in duplicative discovery on expert evidentiary matters that were already the subject of discovery during the MDL proceedings. Plaintiffs received all the process that was their due before the Judicial Panel issued its Remand Order closing common fact and generic issue expert discovery.

Id. at *6.

So maybe what is past is prologue for MDL remand cases.  And that’s a good thing because on the substance we are going to win some and lose some.  But on procedure – it’s usually a defense game.  It’s our side of the v. that gets the most benefit from strict adherence to deadlines and we want those deadlines to travel with the case.  So, if you are faced with expired deadlines (or other procedural orders) and a plaintiff who is looking for a mulligan, hopefully you can use a few of these cases to help make your argument.  And, if you know of others – as always, send them our way.

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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